Copper State Mining Co. v. Wills

CUNNINGHAM, C. J. The minute entries of the superior court of Pinal county filed in this cause inform us that this cause was tried on the twenty-third day of January, 1917. That on said trial the evidence was presented on the part of the plaintiff and plaintiff rested. The defendant thereupon moved in open court for judgment dismissing the action and for an order dissolving the injunction. “Thereupon the court takes the motion under advisement and permits defendant to put in his evidence at this time. ’ ’ The minute entry recites the names of the witnesses who were sworn and the names of those who testified, and that both parties rested. ‘ ‘ Thereupon the court asked counsel to submit briefs. Thereupon plaintiff’s attorney files his brief. Thereupon the court [175] allows time for filing briefs until March 2, 1917.” On April 28, 1917, entered the following order: “It is hereby ordered by this court that the above-entitled action be, and the same is hereby, set for rehearing on Monday, May 7, 1917.” On June 20, 1917, entered the following order: “At this time the court renders its decision herein and files its findings of fact, conclusions of law, and judgment. Thereupon it is by the court ordered that upon the presentation of a written judgment by defendant and its signing and approval by the court, judgment will be entered in favor of the defendant and against the plaintiff in accordance with the decision of this court.” The formal judgment was filed on the twenty-second day of June, 1917. ■ Neither the record filed in this court nor the abstract of the record show any motion made by the plaintiff for a new trial. The record is absolutely silent as to any notice of appeal given at any time. The bond on appeal, filed and approved July 21,1917, recites that appellant has given notice-of appeal, but the record as filed in this court does not sustain the fact recited. The notice of appeal is jurisdictional (paragraph 1234, Civil Code Ariz. 1913), and when, as here, the record fails to show such notice, the appeal will be dismissed. Thomas v. Speese, 14 Ariz. 556, 132 Pac. 1137. The appellant, having failed to follow the requirements of the law of the state necessary to remove the cause from the superior court of Pinal county to this court, this court acquires no jurisdiction to review the judgment, and has no alternative other than to dismiss the appeal. The appeal is dismissed on authority of Thomas v. Speese, 14 Ariz. 556, 132 Pac. 1137. ROSS and BAKER, JJ., concur.